Constructing Citizenship through War in the Human R ights Era

سال انتشار: 1395
نوع سند: مقاله ژورنالی
زبان: انگلیسی
مشاهده: 247

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JR_JHM-11-22_004

تاریخ نمایه سازی: 27 مرداد 1397

چکیده مقاله:

War’s historical relationship to the creation of territorial nation-states is well known, but what em pirical and norm ative role does war play in creating the citizen in a m odern dem ocracy A lthough contem porary theories of citizenship and hum an rights do not readily acknowledge a legitim ate, generative function for war – as evidenced by restrictions on aggression, annexation of occupied territory, expulsions, denationalization, or derogation of fundam ental rights – an em pirical assessm ent of state practice, including the interpretation of international legal obligations, suggests that war plays a powerfully transform ative role in the construction of citizenship, and that international law and norm s im plicitly accept this. D om inant discourses on citizenship in the liberal and cosm opolitan traditions focus on the individual as the unit of analysis and norm ative concern, and on his rights against the state. A t the sam e tim e, the choice of how to construct citizenship – to whom to grant it or from whom to withhold it, and what content to give citizenship – is closely linked to questions of security and identity: citizenship either presupposes or purports to create som e m easure of com m on identity am ong citizens, and im plies obligations as well as rights. This chapter argues that, in assessing legal and m oral positions, this role – if not necessarily approved – m ust be accounted for to achieve a fuller understanding of how peace, war and rights are related. um an rights m ay be conceptualized as universal, but their application and specific content are often m ediated through the state, and therefore understanding how states retain the ability to define the contours of citizenship, including through the effects of war, is critical to an understanding of the actual scope of hum an rights as a legal enterprise and a lived experience. The article will exam ine the form al lim its placed on war as an instrum ent that could affect citizenship; then it will exam ine the evidence for war’s continued effect (through m eans such as differentiation between citizens and alien residents, expulsion of aliens, assim ilation of refugee flows, and border changes); then it will advance an argum ent about how the factual effects of war interact with legal doctrine (such as through selective definition and interpretation of wars, perfection of wartim e changes in peace treaties, and novel dem ographic changes introduced by peace treaties).

نویسندگان

Timothy William Waters

Professor at Indiana University Maurer School of Law